For most of us the issue of Geographical Indications came to surface when in late 1997, an American company RiceTec Inc, was granted a patent by the US patent office to call the aromatic rice grown outside Pakistan and India ‘Basmati’.

The RiceTec Inc ,had been trying to enter the international Basmati market with brands like ‘Kasmati’ and ‘Texmati’ described as Basmati-type rice with minimal success. However, with the Basmati patent rights, RiceTec was able to not only call its aromatic rice Basmati within the US, but also label it Basmati for its exports. This has grave repercussions for Pakistan and India because not only they were to lose US export market, but also their position in crucial markets like the European Union, the United Kingdom, Middle East and West Asia was also in jeopardy.

The use of Geographical Indications (GIs) is an important method of indicating the origin of goods and services. One of the aims of their use is to promote commerce by informing the customer of the origin of the products. Often this may imply a certain quality, which the customer may be looking for. They can be used for industrial and agricultural products.

Basically, a GI is a notice stating that a given product originates in a given geographical area. “Made in Pakistan” is probably the simplest form of GI that we see often. The moment one sees this GI he knows that the product on which this indication is shown has originated from Pakistan.

Protection of Geographical Indications (GIs) has been on international agenda for a long time. Although GIs in a limited fashion were internationally dealt in the Lisbon Agreement for the Protection of Appellations of Origin and their international registration, however, the first global concrete effort in this regard was the inclusion of GIs in the text of the Trade Related Aspects of Intellectual Property Rights (TRIPs) which is a component of GATT.

The TRIPs Agreement that came into force in 1995, and had effect in developed countries as of January 1, 1996. The developing countries, which include Pakistan, had until January 1, 2000 to comply with the TRIPS standards with respect to GIs. TRIPS sets forth standards to regulate international intellectual property protection and enforcement, and establishes international minimum standards for GIs. Part II, Section 3 of TRIPS, in Articles 22-24, specifies the minimum standards of protection that WTO members must provide for GIs. Geographical indications are, for purposes of the TRIPS Agreement, a type of intellectual property. GIs are defined, at Article 22(1) of the TRIPS Agreement, as “indications which identify a good as originating in the territory of a member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographic origin”.

The TRIPS Agreement requires that WTO members provide the legal means for interested parties to prevent the use of a GI that:

(1) indicates or suggests that a good originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good; or

(2) constitutes an act of unfair competition.

Till date no such legislation has been made in Pakistan, however, drafts of the said legislation are under considerations of the government. There is a possibility that a special GI law will be in place shortly in Pakistan. The TRIPs compliance is a very sensitive exercise. Following are some aspects that must be kept in mind while drafting a GI legislation for Pakistan.

1. It must be noted that TRIPs does not specify the legal means to protect GIs. It is left to the countries to decide what those means should be. The other important element in this respect is that the use of a GI, to be inconsistent with the provisions of the TRIPs Agreement, should be done in a manner that may mislead the public as to the true geographical origin of the product. In other words, the use of a GI, which does not mislead the public as to its true origin — according to Article 22 of the TRIPs — should not be considered as an infringement of the TRIPs Agreement.

2. Also according to Article 22(b), whether the use of a GI constitutes an unfair competition act, it is Article 10 bis of the Paris Convention that applies and not any other meaning, for instance under domestic regimes.

3.Regarding the linkage between a trade mark and a GI, Article 22 of the TRIPs provides that countries should refuse or invalidate the registration of a trade mark which contains or consists of a GI with respect to goods not originating in the territory indicated, but only if use of the same in the trade mark for such good in that country is of such a nature as to mislead the public as to the true place of origin.

4. In implementing Section 3 of the Agreement, we should not diminish the protection of GI that existed in Pakistan immediately prior to the date of entry into force of the WTO Agreement, that being the protection under the Trade Marks Act, 1940 (soon to be repealed by the Trade Mark Ordinance, 2001)

5. In accordance with Article 24.9 ofthe TRIPs, there is no obligation to protect GIs which are not or cease to be protected in their country of origin, or which have fallen into disuse in that country. This is the golden rule for the protection of any GI. Thus, protection abroad is dependent on continuing domestic protection.

Though there seems to be a misconception amongst policy makers in Pakistan that protection of GI will probably benefit producers from developed countries - until now, that was the case too, but this could change in the near future. In recent years there has been a significant number of developing countries that have given great importance to the protection of specific products through GIs and it is very essential for countries like Pakistan to protect indigenous GIs like Kenno, Kashmiree Shall, Nehari, Multani Sohan Halwa, Peshawari Chapal, Khusay, etc.